Workplace bullying: Know your rights and remedies

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Workplace bullying is more common than you think

It is often said that the office is a second home. This is especially so in Singapore, where long hours of work is a norm. A 2016 survey conducted by Roffey Park (a leadership institute based in Singapore and the UK) revealed that Singaporean employees spend even more time at work than their Hong Kong and China counterparts.

Apart from that, the survey found that more than half of Singapore workers felt increasingly stressed over the last six months.

These two factors – long work hours and high stress levels at the workplace – lead to an increased possibility of conflict at the workplace. This may explain why a 2012 online survey (conducted by JobsCentral) revealed that 24 per cent of Singaporean employees felt that they were victims of office bullying.

What is workplace bullying?

It can be blatant or subtle. Blatant forms may involve hurling vulgarities at an employee, or even physical abuse in the form of shoving or pushing. For example, a local case of workplace bullying hit the news in 2015, where the victim described how his supervisor had thrown a plastic folder at his face

In this digital age, workplace bullying can even occur on digital platforms, in the form of cyber-bullying. For example, cyber-bullying can occur when a co-worker uploads compromising photos of a fellow worker onto Facebook, where everyone can see it. It can also involve spreading malicious falsehoods about a colleague via a blog post. This may be more serious than conventional forms of bullying, because information published online can reach a wide audience, and can go viral easily. Such information can also be difficult to remove completely from the Internet.

As a victim of workplace bullying, what legal remedies can you seek?

Your options in a nutshell

The remedies that you have would depend on the severity of the workplace bullying. Here is a quick guide to what options you have.

If the workplace bullying involves physical abuse, the perpetrator may face civil or criminal action, or both.

If the workplace bullying is serious enough to constitute harassment under the Protection from Harassment Act, Cap 256A (“POHA”), the perpetrator may similarly be faced with a criminal or civil case, or both.

If workplace bullying results in defamation, a criminal or civil case, or both can be sought as a remedy.

If the workplace bullying is less serious than harassment as defined under POHA, the victim may not have a direct legal recourse against the bully, and may have to explore alternative options.

We will now explore the range of remedies that are available to victims in these three situations.

If workplace bullying involves physical abuse

In extreme cases, workplace bullying may adopt the form of physical abuse. This can involve unwarranted physical contact such as slaps, punches or pushes. In such cases, the victim may

Lodge a complaint with the police and/or

Pursue a civil case by suing the bully

Option (a): Physical abuse as a criminal offence

A successful criminal prosecution may result in monetary compensation to the victim (in accordance with Section 359 of the Criminal Procedure Code) and ensures that the offender is duly punished for his extreme form of bullying.

A bully voluntarily causes hurt when he causes hurt to the victim, and knows that he is likely to cause hurt by his actions.

Imprisonment for a term up to 2 years, or with fine extending to $5,000, or with both (s 323 PC)

Section 340 PC (Wrongful confinement)

Wrongful confinement occurs if a bully causes the victim to enter into a room and locks the victim in.

Imprisonment for a term up to 1 year, or with fine extending to $3,000, or with both (s 342 PC)

Section 352 PC (Using assault or criminal force)

Assault occurs if a bully makes any gesture, knowing that it is likely to cause the victim to apprehend the use of criminal force.

However, mere words do not constitute assault. A gesture such as shaking a fist, or picking up a stick, is necessary to constitute assault. (Explanation (c) to s 351 PC)

A bully illegally uses criminal force if he:

• Uses force against the victim without his or her consent and
• Knows that it is likely to cause injury, fear or annoyance to the victim.

Examples include pushing the victim, throwing a stone at the victim, and intentionally pulling up a woman’s veil (illustrations (d), (e) and (f) to s 350 PC)

Imprisonment for a term up to 3 months, or with fine extending to $1,500, or with both (s 352 PC)

(Assuming the defence of provocation does not apply)

For use of criminal force, Imprisonment for a term up to 3 months, or with fine extending to $1,500, or with both (s 352 PC)

(Assuming the defence of provocation does not apply)

Section 503 PC (Criminal intimidation)

Criminal intimidation occurs if the bully threatens the victim with harm to his person, reputation or property, and intends to cause alarm to the victim by doing so.

Imprisonment for a term up to 2 years, or with fine, or with both (s 506 PC)

The sentencing range may be increased, depending on the severity of the threat.

The general exception in s 95 PC should be noted – if the harm is so slight that a person of ordinary sense and temper would not complain of it, the bully would not have committed a criminal offence.

Option (b): Physical abuse as a civil wrong

The victim may also commence a civil suit against the bully for battery. The two main relevant causes of action would be the tort of battery and the tort of assault.

The tort of battery occurs when there is direct physical contact between the bully and the victim, which is intended by the bully. Furthermore, such physical contact must be unjustified – meaning that such contact must not be generally acceptable in the ordinary conduct of daily life (Wainwright v Home Office [2004] 2 AC 406, at [9]). Notably, if the bully throws an object at the victim, this still counts as direct contact.

Even if the victim does not suffer any physical harm from the contact, he or she can still sue for the tort of battery (Cole v Turner [1704] 6 Mod Rep 149). However, practically speaking, the victim would only be able to recover nominal damages in such situations, which may not be worthwhile. Conversely, if the victim did suffer substantial injuries from the battery, he or she would be able to claim for a greater quantum of damages from the bully.

The tort of assault occurs when the bully commits an act which causes the victim to reasonably apprehend the affliction of immediate, unlawful force on him. The bully must have intended to cause such apprehension on the victim’s part.

Unlike the tort of battery, no direct physical contact is required to establish the tort of assault. If no physical harm is suffered, the victim may attempt to seek compensation for emotional and psychological harm that is suffered. However, such damages are generally hard to prove and quantify, and may result in only nominal damages being awarded. The victim is likely to obtain a higher chance of recompense if he has indeed suffered some form of physical harm as well.

If workplace bullying constitutes harassment

According to case law, harassment essentially occurs when a person exhibits verbal or non-verbal conduct that is determined and calculated to be threatening, abusive or insulting towards another person, such that it is likely to cause the latter distress and alarm when he or she perceives it.

POHA is intended to strengthen harassment laws in Singapore, and captures a variety of harassment behaviours – be it blatant or subtle, sexual or non-sexual, and even online behaviour.

As a victim of bullying, you will likely have a remedy based on s. 3, 4, 5 or 7 of POHA. The table below breaks down each section.

Sections 3, 4, 5 and 7 POHA – Elements

Section 3 POHA – Intentionally causing harassment, alarm or distress

POHA section

Description

Section 3 (intentionally causing harassment, alarm or distress)

A bully violates section 3 POHA if he:

• Exhibits verbal or non-verbal conduct that is threatening, abusive or insulting, which causes the victim harassment, alarm or distress

• Intends to cause harassment, alarm or distress to the victim by doing so

Section 3 focuses on the bully’s intention.

• For example, if X shouts insulting words about Y at the workplace, knowing that Y is close enough to hear it, X would have demonstrated an intention to harass Y.

Section 4 (Harassment, alarm or distress)

A bully violates section 4 POHA if he:

• Exhibits verbal or non-verbal conduct that is threatening, abusive or insulting, which the victim heard, saw or perceived

• Such conduct is likely to cause harassment, alarm or distress to the victim

Importantly, unlike section 3, section 4 of POHA does not require the victim to prove the intention of the bully to harass. The victim does, however, need to prove the bully’s intention to perform the act. Once the victim establishes the above elements, it becomes the bully who has to prove that he either had no reason to believe that his words or behaviour would be heard or seen by the victim or that his conduct was reasonable.

This is one key reason why section 4 POHA is a more accessible provision for the victim compared to section 3 POHA. This also explains why the sentencing range for an offender under section 4 POHA is less severe than that under section 3 POHA (see below under “Sections 3, 4, 5 and 7 POHA – Remedies).

Section 5 (Fear or provocation of violence)

A case under section 5 POHA can occur when a bully:

• Exhibits verbal or non-verbal conduct that is threatening, abusive or insulting towards the victim

• The victim is likely to believe that unlawful violence will be used against the victim or any other person (usually someone close to the victim)

Examples of section 5 infringements:

1) X verbally threatens to beat up Y. X is notorious for having a violent disposition with previous antecedents of beating people up.

2) X sends Whatsapp messages to Y, threatening to set fire to Y’s house when Y’s family is at home.

Section 5 is more specific than the previous provisions, as it focuses on the possibility of violence being used against the victim or another person.

• Engages in a course of conduct associated with stalking
• Such conduct causes harassment, alarm or distress to the victim
• The bully intends or ought reasonably to know that such conduct would likely cause harassment, alarm or distress to the victim

Examples of unlawful stalking include (section 7(3) POHA):

• Following the victim
• Loitering near the victim’s house
• Sending the victim Whatsapp messages with suggestive comments about his or her body
• Circulating revealing photographs of the victim to other colleagues

Unlike the previous sections, section 7 requires the bully to have engaged in a course of conduct. Ordinarily, this refers to the bully’s conduct on at least two occasions. However, a course of conduct can refer to conduct on one occasion, if the conduct is protracted. For example, X secretly plants a camera in Y’s apartment. The camera continuously transmits live videos of Y in her apartment, and X watches the video over several days. X’s conduct is protracted.

In considering whether a course of conduct is likely to cause the victim harassment, alarm or distress, the court will generally consider (section 7(5) POHA)
• Number of occasions of stalking
• Frequency and duration of stalking
• Manner of stalking
• Likely effects of the course of conduct on the victim’s safety, health, reputation, economic position or freedom.

Sections 3, 4, 5 and 7 POHA – Remedies

If the victim suspects that the bully has committed offences under s 3, 4, 5 or 7 POHA, the victim may choose to

Report the incident to the police, whereby the bully may be charged by the Public Prosecutor under the relevant sections; and/or

Pursue a civil case against the bully, where the victim may

Seek monetary compensation from the bully and/or

Seek a Protection Order against the bully and/or

Seek a Non-Publication Order against the bully

This section will explore these available remedies for the victim.

#1. Criminal Prosecution

Should the Public Prosecutor decide to charge the bully under the relevant section(s) and if the bully is convicted, the punishment for a first time offender is as follows:

POHA section

Punishment (first time offender)

Section 3 (intentionally causing harassment, alarm or distress)

Fine up to $5,000, or imprisonment not exceeding 6 months, or both

Section 4 (Harassment, alarm or distress)

Fine up to $5,000

Section 5 (Fear or provocation of violence)

Fine up to $5,000, or imprisonment not exceeding 12 months, or both

Section 7 (Unlawful stalking)

Fine up to $5,000, or imprisonment not exceeding 12 months, or both

If the police chooses not to investigate the matter after the victim has made a police report, the victim has the option to file a Magistrate’s Complaint.

#2. Civil case against the bully

The victim may seek to commence a civil case against the bully (s 11 POHA). The victim would have to adduce sufficient evidence to establish that it is on a balance of probabilities that the bully had breached the POHA. Such evidence may include photos or videos of the offending conduct. This is also subject to any defences which the bully may raise.

If the victim succeeds, there are several options including (a) Monetary Compensation, (b) Protection order, (c) Expedited Protection Order and (d) Non-Publication Order.

Monetary Compensation

If the victim succeeds in establishing the case, he or she may claim monetary compensation for his or her alarm or distress as a result of the bully’s harassment. If the victim has sought medical treatment due to the harassment, he or she should retain the relevant medical records and invoices as proof for the claim.

Protection Order

The victim may also seek a Protection Order against the bully (s 12 POHA).

The court has the discretion to direct the bully to refrain from his or her offending conduct. Breach of a Protection Order would constitute contempt of court, and is also an offence under s 10 POHA.

To grant a Protection Order, the court must be satisfied that

The bully had breached s 3, 4, 5 or 7 POHA; and

The bully’s conduct is likely to continue; and

It is just and equitable to grant the Protection Order

Expedited Protection Order

For urgent cases, the victim may seek an Expedited Protection Order against the bully (s 13 POHA).

While this order is “expedited”, it will only take effect when served on the bully.

The court must be satisfied that

There is prima facie evidence that the bully had breached s 3, 4, 5 or 7 POHA; and

The bully’s conduct is imminently likely to continue; and

The bully’s conduct is likely to adversely affect the victim substantially; and

It is just and equitable to grant the Expedited Protection Order

An Expedited Protection Order is only for a limited time.

Non-Publication Order

For cases involving false statements of fact, the victim may also seek a Non-Publication Order against the bully under s 15 POHA.

The court may order the bully not to publish the false statement anymore, unless the bully publishes a notification drawing attention to the falsehood.

Before issuing such an order, the court must be satisfied that

The bully had indeed published a false statement of fact about the victim; and

It is just and equitable to grant the Non-Publication Order

A breach of Non-Publication Order is contempt of court.

Sections 3, 4, 5 and 7 POHA – Defences

The strength of your case may be affected if the bully can avail himself of a defence. This section briefly covers the possible defences which the bully may raise for each section.

The bully may have a defence if his conduct was reasonable (s 3(3) POHA). To determine whether the bully’s conduct is reasonable, the court will consider (Benber Dayo Yu v Jacter Singh [2017] 5 SLR 316 at [43]):

The nature and context of the offending acts; and

The effect of the acts on the victim

Defences for section 4 (Harassment, alarm or distress)

The bully has a defence if his conduct was reasonable (s 4(3)(b) POHA). In addition to that, he has another possible defence (s 4(3)(a) POHA) – that he had no reason to believe that his verbal or non-verbal conduct would be heard, seen or otherwise perceived by the victim.

Defences for section 5 (Fear or provocation of violence)

The bully’s defences here are similar to those under section 4 POHA, as discussed above.

Firstly, the bully has a defence if his conduct was reasonable (s 5(3)(b) POHA).

Secondly, he has a defence if he had no reason to believe that his verbal or non-verbal conduct would be heard, seen or otherwise perceived by the victim (s 5(3)(a) POHA).

Defences for section 7 (Unlawful stalking)

For a case under section 7 POHA, the bully generally has 2 main defences. He may argue that

His course of conduct was reasonable (s 7(7)(a) POHA); or

His course of conduct was pursued to comply with the law (s 7(7)(b), (c) and (d) POHA)

The second defence would be rarely invoked, at least for the usual cases involving workplace bullying. Thus, the bully’s main recourse would be to the first defence of reasonable course of conduct.

Even if workplace bullying is not serious enough to constitute harassment, you still have some options

In some cases, uncomfortable behaviour perpetuated by your colleagues may not be enough to amount to harassment. Nonetheless, you still have several options. These include:

Attempting to resolve the situation on your own by speaking with your colleague

Seeking guidance from a trusted person or colleague

Keeping records of any evidence of the harassment, if it is ongoing. This is because the case may eventually escalate to one that could constitute harassment under POHA, whereupon the victim can seek more effective redress.

Report the incident(s) to the supervisor, manager or a neutral party

Ending remarks

Workplace bullying is a serious phenomenon, with negative effects on both the employee and the organisation generally. No one should have to suffer in silence. Should you be facing such a predicament, you should know your rights and remedies, and explore the available options to prevent such incidents from continuing.

Have a question about workplace bullying?

If you have any questions, you can get a Quick Consult with Lau Kah Mei or other lawyers from a transparent, flat fee of S$49. You can expect a call back within 1-2 days on the phone to get legal advice and have your questions answered.

This article does not constitute legal advice or a legal opinion on any matter discussed and, accordingly, it should not be relied upon. It should not be regarded as a comprehensive statement of the law and practice in this area. If you require any advice or information, please speak to a practicing lawyer in your jurisdiction. No individual who is a member, partner, shareholder or consultant of, in or to any constituent part of Interstellar Group Pte. Ltd. accepts or assumes responsibility, or has any liability, to any person in respect of this article.